STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
} In re: Brandon Plaza Conditional Use Application } Docket No. 128-8-10 Vtec } }
Decision and Order on Pending Motions
A group of individuals who had filed a petition with the Development Review Board (DRB) of the Town of Brandon, asserting standing under 24 V.S.A. § 4465(b)(4), appealed as a group (Appellant Group)1 from a decision of the DRB granting conditional use approval to Cross-Appellant-Applicant, Brandon Plaza Associates, LLC, (Applicant) for the construction of a supermarket. This is an on-the-record appeal, as the Town of Brandon has adopted and implemented the procedures necessary for such appeals pursuant to 24 V.S.A. § 4471(b).2 Appellant Group is represented by James A. Dumont, Esq.; Applicant is represented by Edward V. Schwiebert, Esq. and David R. Cooper, Esq.; and the Town is represented by James F. Carroll, Esq.
[*1]Applicant has moved to dismiss Appellant Group for lack of standing. In the alternative, Applicant has moved to dismiss Questions 4, 6, 8, 9, 10, and 16 of the Statement of Questions in their entirety, and to dismiss Questions 12, 13, and 14 at least in part.
Four individuals—Helyn Anderson, Kevin Thornton, Lorraine Kimble, and Bette Moffett—have moved to intervene in this appeal. Two of those individuals are members of Appellant Group and two of them are not.
[*2]spaces; it specifically disapproved both other buildings and the access onto Nickerson Road.
Appellant Group appealed the grant of conditional use approval. Applicant appealed the DRB’s disapproval of the two smaller buildings, their associated parking spaces, and the access onto Nickerson Road.
[*3]are those that were approved by the DRB. The parties are all free to use this site plan or any other illustration of their arguments in their briefing of this on-the-record appeal.
[*4]2010), slip op. at 3–5.
The statute does not require the petition under 24 V.S.A. § 4465(b)(4) to state any particular issues. Rather, it only has to allege that the project “will not be in accord with the policies, purposes or terms” of the municipal plan or bylaw. Both versions of the petitions signed by members of Appellant Group contain the required statutory language.
In the present case, on September 21 or 22, 2009, all fifteen members of Appellant Group signed petitions that alleged that the proposed project “will not be in accord with the policies, purposes or terms of the Brandon Land Use Ordinance.” Twelve of the group members signed petitions that added the language: “and will have, among [other] things, an undue adverse effect on the character of the area affected.” The other three group members signed petitions that added the language: “and will have, among [other] things, an undue adverse effect on traffic and roads in the vicinity of the proposed project.”
Contrary to Applicant’s argument, to have standing under § 4465(b)(4) an appellant group is not required to define the concerns it wishes to raise either in its petition to the DRB or in its notice of appeal to this Court. When it is before the DRB, if it wishes to participate it may do so by “offering, through oral or written testimony, evidence or a statement of concern related to the subject of the proceeding,” without any prior warning to the other parties as to the issues that it will cover. 24 V.S.A. § 4471(a). Similarly, if an appellant group appeals to this Court, its notice of appeal also is not required to define the issues it intends to raise. See V.R.E.C.P. 5(b)(3). It is not until an appellant group files its statement of questions that it is thereafter limited to raising in the appeal only those issues it has presented in the statement of questions. V.R.E.C.P. 5(f).
This minor difference in the language of the petitions does not create two petitioning groups or limit the issues that the Appellant Group as a whole may raise.
[*5]Indeed, the petitions only needed to allege that the Brandon Plaza land use application, if granted, “will not be in accord with the policies, purposes, or terms of the Brandon Land Use Ordinance.” Indeed, in this particular case the petitions note that their concerns are not limited either to the character of the area, in the one instance, or to the effect of the proposal on traffic, in the other instance, by stating that those specific concern are only “among [other] things.”
[*6]designate one person to serve as the representative of the petitioners.” Nothing in the statute precludes the group from changing its representative during a proceeding, for example, if a representative is ill or on vacation, and nothing precludes such a group, if then or later represented by counsel, from designating its attorney as its representative.
In the present case throughout the Appellant Group’s participation before the DRB, the DRB did not require a representative to be designated, but treated Attorney Dumont as the group’s representative, or at least did not distinguish between the group itself and the group’s members as being represented by Attorney Dumont. The DRB did not dismiss the Appellant Group for failure to designate a non-attorney representative, and this Court will not dismiss this on-the-record appeal in which the Appellant Group is represented by counsel.
[*7]Under 10 V.S.A. § 8504(n), intervention is allowed in a municipal zoning appeal for those who appeared as a party in the action appealed from and retained party status; those who are parties by right (such as the applicant or the municipality); those who qualify as interested persons under 24 V.S.A. § 4465; and those who meet the standards for intervention under V.R.C.P. 24. In the DRB proceedings, none of the four movants claimed or was granted party status as an individual under 24 V.S.A. § 4465(b(3), and the motion to intervene does not argue that they qualify for individual party status under that section in this proceeding.
Rather, the four movants ask the Court either to allow them to intervene as of right under V.R.C.P. 24(a), arguing that their interests are not adequately represented in this action, or to allow them permissive intervention under V.R.C.P. 24(b), arguing that their claims and those in Applicant’s cross-appeal share common issues of law or fact. Motion to Intervene at 1, 4.
Because the Court has not dismissed the Appellant Group’s appeal, the four movants do not qualify to intervene under V.R.C.P. 24(a), as their interests are adequately represented by an existing party: the Appellant Group.
The four movants also do not qualify to intervene under V.R.C.P. 24(b), which requires that the movant have a “claim” that has a question of law or fact in common with the “main action.” None of these four movants has a “claim” at all that can be independently asserted before this Court, as they did not participate as individual parties under 24 V.S.A. § 4465(b)(3) before the DRB, and therefore do not qualify as individual appellants. It therefore is not necessary for the Court to reach the question of whether they could demonstrate a “physical or environmental impact” on their interest “under the criteria reviewed,” as also required for standing under § 4465(b)(3), because they have no “claim” cognizable in this Court independent of the Appellant Group’s appeal.
[*8]Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that: 1. Applicant’s motion to dismiss the appeal, the Appellant Group, or any of the
Questions in the Statement of Questions is DENIED. This decision of course does not preclude any of the parties from presenting arguments in their briefs on
the merits of this on-the-record appeal, as to the interpretation, applicability, or lack of applicability of any specific section of the Zoning Ordinance. 2. The four individuals’ motions to intervene are DENIED as they do not meet the statutory requirements for intervention under either V.R.C.P. 24(a) or 24(b), as discussed above.
A telephone conference has been scheduled to set a briefing schedule for this on- the-record appeal. (See enclosed notice.) Done at Berlin, Vermont, this 5th day of August, 2011. _________________________________________________ Merideth Wright Environmental Judge
[*9]